Opinion
A164154
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JESUS PANIAGUA-ROJAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-725154-1
STEWART, P.J.
Defendant and appellant Jesus Paniagua-Rojas appeals from convictions of sexual offenses committed against the two young daughters of his then-girlfriend. He contends his convictions must be reversed due to the trial court's exclusion of impeachment evidence, admission of expert testimony on Child Sexual Abuse Accommodation Syndrome, and prosecutorial misconduct. We affirm.
BACKGROUND
I.
Factual Background
Jane Doe 1, the daughter of Cecilia and Felipe, was born in 2005. Cecilia and Felipe separated in 2008 and Felipe moved to Los Angeles; Jane Doe 1 lived with Cecilia and spent vacations with Felipe. Felipe moved back to Santa Rosa in 2016, after which Jane Doe 1 was with him on weekends and with Cecilia on weekdays.
We use first names for readability; no disrespect is intended.
Jane Doe 2 was born to Cecilia and Andres in 2009. Cecilia and Andres ended their relationship in 2010 and shared custody of Jane Doe 2.
Cecilia began dating defendant in 2011 and they began living together in 2012. In 2012, Cecilia, defendant and the two girls moved into a two-bedroom apartment in Santa Rosa that Cecilia testified she would not have been able to afford without defendant's income; defendant paid the rent and she paid for groceries and bills.
A. Abuse of Jane Doe 1
1. The Abuse Jane Doe 1 Described
Jane Doe 1 was almost 16 years old at the time of trial. She testified that when defendant lived with them, he took care of her and her sister during the day while their mother was at work. On weekends, Jane Doe 2 usually was with her father and Jane Doe 1 was alone with defendant when her mother was out. Jane Doe 1 was usually alone with defendant on Friday nights because her mother went to the casino.
Cecilia testified defendant started to become more involved with her daughters, including watching them when she went out, after they had been living together for about two years. This was when Jane Doe 1 was about nine years old.
Cecilia testified that Jane Doe 2 sometimes spent weekends with her father when he had vacation or his work shifts changed but for the most part was with him in the mornings and with Cecilia in the afternoons. Andres testified that he and Cecilia each had Jane Doe 2 for two full days a week and on the other days he had her in the mornings and Cecilia had her in the afternoons and evenings.
Cecilia testified that the days she consistently went to the casino were Wednesdays and Saturdays, not Fridays, although at one point she referred to Wednesdays and Fridays as the days she was able to go.
Jane Doe 1 testified that defendant at first treated her like she was his own daughter, but when she was about eight years old he started getting "more touchy," grabbing her "super tight" around her waist or chest. He started coming into her room at night, scratching her back and then moving his hands inside her shirt and grabbing her chest. This happened two or three times a week.
One Friday when Jane Doe 1 was still eight years old, defendant got on top of her while she was on the couch watching television. Defendant pushed her into a "laying" position and pulled off her shirt, pants and underwear as she tried to move out of the way or cover herself. He took off his shorts and underwear, forced her legs apart and tried to put his penis in her vagina; as she tried to stop him, he held her down, put his fingers in her vagina and then put his penis in her vagina. Afterward, Jane Doe 1's body was sore and her vagina felt "like I was being ripped."
Subsequently, defendant continued to touch Jane Doe 1 when no one was looking, grabbing her chest or between her legs. A couple of times, defendant set up blankets on the living room floor and asked both girls to sleep there with him. Defendant would lie next to Jane Doe 1 and put his hands under her clothes to touch her chest and vagina, and a couple of times he put his fingers inside her.
When Jane Doe 1 was nine years old and in fourth grade, one Friday night around Thanksgiving she was on the living room floor and defendant knelt over her and tried to kiss her mouth, then took off her shirt, pants and underwear. She did not move because she was too scared. He took off his clothes and tried to move her legs apart with his legs while holding his hands against her chest, and when he got her legs apart, put his penis in her vagina. When he stopped and got up, she ran to the bathroom; her body ached, it burned when she tried to urinate and her vagina was swollen.
Defendant forcibly had intercourse with Jane Doe 1 a third time a couple of months later, while she was still nine years old. This was a weekend morning when her mother was at work. Defendant told Jane Doe 1 to get in bed with him and when she did not, he got irritated and pulled her onto the bed. Defendant rolled on top of her and tried to kiss her as she moved her head and tried to move away from him. Defendant held her down, took off her pants and underwear and his shorts, forced her legs apart and pushed his penis into her vagina. He then pulled out his penis, moved his head toward her vagina and licked her vagina for five or ten minutes, saying her mother told him to do it and he was doing it to make her feel better. Defendant then "pushed [her] aside and got up." Jane Doe 1 felt "disgusted" and "used."
Jane Doe 1 did not tell anyone what was happening at the time. She testified that she was "afraid . . . someone might think something wrong 'cause I wasn't even sure what was going on." When she began to take sex education classes around the end of fifth grade, she was able to figure out what had happened and understood it "wasn't something for children," but she still did not tell anyone because she was embarrassed and thought it was her fault. She told Jane Doe 2 to tell her "if someone ever touched her" but did not refer to defendant or anyone specific.
The detective who observed Jane Doe 1's forensic interview testified that she said she told her sister not to let defendant touch her and to tell her if he did.
Asked why she did not tell her mother after the third forcible intercourse, Jane Doe 1 said she did not know. She testified that her relationship with her mother was "already pretty bad," as she had been telling her mother she did not want to live with her anymore and her mother "didn't like that." She started saying she did not want to live with Cecilia when she was about eight years old, around the time defendant started touching her, because she did not want to be around him. Around the same time, Jane Doe 1 and Cecilia started arguing a lot, which Jane Doe 1 attributed to her resenting defendant and Cecilia-the latter because she was angry that Cecilia would leave her with defendant. Jane Doe 1 acknowledged on cross examination that she thought her mother "always preferred [defendant] over [her]." She testified that she told her father she wanted to stay with him but did not tell him about defendant. Felipe and Cecilia, in their testimony, confirmed that Jane Doe 1 expressed wanting to live with Felipe or at least be with him more than with Cecilia.
Jane Doe 1 testified that the abuse stopped around the time her father moved back to Santa Rosa. She was about 10 and had gotten her first period. Jane Doe 1 continued living primarily with her mother and defendant and was doing "really badly" and having suicidal thoughts. She felt she was "holding in something really big" and was "too embarrassed to tell anybody," and "I knew that if anybody was to find out my mom wouldn't believe me, my family wouldn't believe me, they would of judged me, and . . . I didn't want to deal with that." Jane Doe 1 thought her mother would not believe her because her mother trusted defendant and depended on him, and she was worried about what would happen to the apartment if she told and that her mother and sister might not have "anywhere to go."
2. Jane Doe 1's Disclosure
When Jane Doe 1 was 12, in seventh grade, a school counselor found out that she had been cutting herself. On May 9, 2018, the school contacted Felipe. Jane Doe 1 showed her father her scars. She testified that she told him defendant had touched her but was not able to talk about details; Felipe testified that she told him defendant raped her. Felipe called Cecilia and told her what happened. Cecilia was at the casino with defendant at the time. They stayed for an hour and a half, until the games finished, then took the hour-and-a-half bus trip back to Santa Rosa. Cecilia did not tell defendant what Felipe had told her and testified that the bus was the only way to get back.
Jane Doe 1 and Felipe went to talk with Cecilia the next day. Cecilia said Jane Doe 1 was overreacting and probably wrong. Jane Doe 1 testified that the three got into a "huge argument" because Cecilia wanted Jane Doe 1 to tell her where defendant touched her and Jane Doe 1 was uncomfortable showing her. Jane Doe 1 testified that when she showed her mother the cuts on her arm, Cecilia told her that if she wanted to cut or kill herself, she "should have done deeper." Cecilia testified that she said," 'Couldn't you have cut yourself a bit more, then?'" She explained that Jane Doe 1's arm was "completely destroyed. There was no place she could even get another cut in. And in our culture, when somebody does something extreme, we say to them, 'Couldn't you have done more, then?'" Cecilia testified that she was not angry with Jane Doe 1 but was scared and did not know "the right way to react." Also, Cecilia was already very upset and angry with Felipe because they had gotten their divorce a few days before and, as a result, she was required to pay him child support.
Jane Doe 1 left with Felipe but returned to her mother's apartment when her father had to go to work. Cecilia and defendant insisted on talking with her and sent Jane Doe 2 to watch TV. The conversation ended with Jane Doe 1 crying and not wanting to talk to them because they were "going against" her, telling her she was "wrong" and was lying. Jane Doe 1 went to her room crying, Cecilia and defendant pulled Jane Doe 2 out of the room and told her to go do homework, and as Jane Doe 1 continued to refuse to talk and say she wanted her father, defendant started recording her with his phone. Jane Doe 1 told him to stop and told Cecilia to leave. Defendant then left the apartment and Jane Doe 1 told Cecilia that defendant had raped her. She did not tell Cecilia any further details because she was not ready to talk about them. According to Jane Doe 1, Cecilia asked why she had not said anything sooner, it was "something so easy to talk about," then started to cry.
By Cecilia's description, defendant confronted Jane Doe 1, demanding that she "say what you have been saying" and Jane Doe 1 told him," 'Yes, you did do it.'" When defendant left the apartment and Jane Doe 1 told Cecilia that he had raped her, Cecilia told her "[e]verything was going to work out" and they were going to look for help.
Cecilia told defendant he had to move out. He initially denied doing anything and asked, "How is it possible to lose everything just over the hissy-fit of a little girl?" He moved out on May 13.
Jane Doe 1 and her parents went to the police on May 21, 2018. Felipe testified that they had not gone to the police immediately after Jane Doe 1 disclosed the abuse because Cecilia did not believe she was telling the truth, and because he did not know what to do. Cecilia testified that she first took Jane Doe 1 to her doctor, who referred them to a therapist and a support organization, where they were told to make a police report. Cecilia testified that Jane Doe 1 was "very damaged" and Cecilia was afraid she would hurt herself, and "[s]o many different things were going on, I can't tell you exactly day by day in order which things happened, but I was trying to get everything in order to the best of my ability." Jane Doe 1 would lock herself in the bathroom and did not want to be with or talk to Cecilia and Jane Doe 2. On one occasion Jane Doe 1 locked herself in the bathroom and told a friend she "no longer wanted to live"; the friend's father heard and told Cecilia that Jane Doe 1 needed help.
The police detective who spoke with the family on May 21, 2018, testified that Cecilia described this incident happening on May 14, saying that when she attempted to confront Jane Doe 1, Jane Doe 1 locked herself in the bathroom; Cecilia asked defendant to leave the house and Jane Doe 1's friends contacted Cecilia saying Jane Doe 1 was sending texts about killing herself; then Jane Doe 1 eventually opened the door and told Cecilia that defendant had raped her. Cecilia testified that the incident did not happen on the day Jane Doe 1 told her defendant had raped her and Jane Doe 1 testified that she did not lock herself in the bathroom that day.
A therapist with the county mobile support team who spoke with Jane Doe 1 at the police department on May 21, 2018, testified that she told him she had been abused by her mother's boyfriend; that he had had sexual intercourse with her twice when she was in fourth grade and once in fifth grade, and also touched her vagina and chest; that he told her he "was giving her a gift by having intercourse with her and that she should be grateful";and that the abuse stopped when she began to menstruate and he said he did not want to get her pregnant. Jane Doe 1 appeared "very distraught, fearful," was tearful at times, and said she had not reported the abuse at the time it was happening because she was "afraid that her mother would become homeless because of financial ramifications of the report, that her mother's boyfriend would no longer support them." They discussed Jane Doe 1's suicidal thoughts and she said it had been very challenging holding in this information and she felt better since disclosing it. She was given referrals for counseling resources and the county youth and families mental health program.
The mobile support team was described as "a team of mental health professionals and alcohol and drug professionals that respond with law enforcement to mental health crises."
Jane Doe 1, when asked at trial whether defendant ever made "any comments to you about it being a gift or anything like that," testified that he did not.
Jane Doe 1 testified that the abuse stopped after she got her first period but when asked if defendant talked to her about it, she said he just told her Cecilia had said her period started and asked if it was true.
Detective Timothy Raymond arranged for and observed a forensic interview of Jane Doe 1 on May 29. Jane Doe 1 testified that this interviewer was the first person she told everything that had happened to her. Raymond testified that Jane Doe 2 was also interviewed at this time because she was then the age Jane Doe 1 said she had been when her abuse began. Jane Doe 2 did not disclose any abuse.
A video recording of Jane Doe 2's interview was played for the jury. Things she said she liked about defendant included that he played with her, let her watch TV and bought her candy; asked what she did not like, she said he would tell her to do her homework and he would drink her water. She did not disclose any unwanted physical contact, including when asked about people touching her in a way she did not like.
After May 2018, Jane Doe 1 lived with Felipe. Cecilia continued to share custody of Jane Doe 2 with Andres. Jane Doe 1 and Cecilia both testified that they did not discuss what had happened to Jane Doe 1 with Jane Doe 2.
About four months after defendant moved out, he called Cecilia and asked what happened; she told him," 'Don't act a fool. You abused my daughter.'" He told her everything was going to be cleared up and he would be able to come back. The day before Thanksgiving, he called and said he had been in Mexico but was about to come to the United States and would see her soon. Subsequently, he called and said he was in Santa Rosa. Cecilia told him not to come near her or her family and she never heard from him again.
On cross examination, Cecilia denied telling defendant he needed a good lawyer and said she just told him to" '[e]njoy your freedom and not come anywhere near us.' "
B. Abuse of Jane Doe 2
1. Jane Doe 2's Disclosure
In February 2019, while driving to a group therapy appointment for Jane Doe 1, Cecilia and Felipe, Jane Doe 2 told Cecilia she had something "really important" to tell her about defendant. Jane Doe 2 asked if Cecilia knew about "those videos where people are naked" and said defendant would play the videos for her and tell her, "that's what you have to do." She said defendant would make her take off her clothes, lie her on the bed and get on top of her," 'squishing'" her, and" 'give [her] something to eat' "; she did not like it and went to the bathroom and threw up. When Cecilia asked if defendant gave her food, Jane Doe 2 said," 'No mommy. He gave me from his botchy.'" Cecilia said she did not understand and Jane Doe 2 said" 'he would make me eat from his butt.'" Cecilia's understanding was that defendant would "make her suck on his part." Cecilia asked how many times defendant did this and Jane Doe 2 said he did it "all the time." Cecilia immediately called Jane Doe 2's father and told him what Jane Doe 2 had said. She also told the therapist, who said they had to file a report, and Cecilia contacted Detective Raymond.
Jane Doe 2 waited in a playroom during these therapy sessions.
Andres testified that in February 2019, Jane Doe 2, crying, told him that defendant had touched her private parts and showed her "porno videos." He and Cecilia went to the police "[a]t that moment." Andres testified that he had noticed Jane Doe 2 becoming shy and sad when she was around seven or eight years old; he would ask questions and she seemed "scared to tell me, but at the same time she wants to tell me, but she didn't know how to express it." Cecilia told him about Jane Doe 1's allegations against defendant in May 2018 but Cecilia did not believe Jane Doe 1 was telling the truth. Five or six months later, Andres met Jane Doe 1 and Felipe at a park and talked with them about what happened, while Jane Doe 2 played elsewhere. Andres did not tell Jane Doe 2 anything about what happened with Jane Doe 1, but she told him that she heard Cecilia talking on the phone about it.
When Cecilia contacted Raymond in February 2019, it had been about eight months since Raymond had spoken with anyone in the family. He arranged for a forensic interview of Jane Doe 2. The day after the interview, Raymond went to defendant's workplace and arrested him.
The recording of this interview was also played for the jury.
2. Jane Doe 2's Testimony
Jane Doe 2, 12 years old at the time of trial, testified that defendant would touch her "private parts" with his fingers and with his private parts "[m]ostly every time when my mom went to bingo." This happened when she was in first, second and third grade. Defendant would put his fingers in her vagina, which hurt, and put his mouth on her private part and "use his tongue." He would also touch her chest and kiss her on her lips and neck. This usually happened in defendant and Cecilia's bedroom, but sometimes in the girls' bedroom defendant would touch Jane Doe 2's chest or "private" with his hands. Also, Jane Doe 2 testified that she once slept on the living room floor with Jane Doe 1 and defendant and, on that occasion, defendant touched her vagina with his fingers and also touched her chest and waist. She was in the middle and she saw defendant touch Jane Doe 1, but only her shoulder.
Jane Doe 2 did not remember when the touching started but the last time it happened was when she was in third grade and about eight years old: Defendant touched her private part with his mouth, fingers and private part. He put his private part in her private part more than one time in both third grade and second grade but she did not know how many times "because it was most of the time" her mother was not there. It hurt every time. Defendant sometimes touched her when her mother was at home and sleeping, but he only put his private part in her private part when her mother was not there.
Defendant also had Jane Doe 2 touch his private part. He would "put his hand on my head and make me suck on his private part," after which she would go to the bathroom, wash her mouth and sometimes throw up, and he would "make me grab his private part and make me move my hand up and down." She did not remember how many times these things happened but both happened a lot. Sometimes Jane Doe 2 would be lying down and defendant would "put his hands against the wall and start putting his private part in my mouth." Rarely, he would make her shower with him; he would "touch me with his hands and at the same time he would clean me."
Jane Doe 2 testified that defendant would make her watch videos on his phone of naked adults, then "copy like the video and do it with me." She did not tell anyone about what defendant was doing until she was nine or ten. She finally told because she "noticed he wasn't gonna come back so he can't do anything."
C. Child Sexual Abuse Accommodation Syndrome (CSAAS)
Clinical psychologist Dr. Anna Washington, a clinical psychologist with a specialty in child sexual abuse, testified for the prosecution as an expert in CSAAS. She testified that CSAAS was initially described by Dr. Roland Summit in the early 1980s as a "framework to help dispel some common myths that people may hold about child sexual abuse so that people could better understand the experience that victims may have." In a follow-up article in the 1990s, Summit said he wished he had called CSAAS a "pattern" rather than a "syndrome" because the latter can have "medical or legal connotations" and what he wanted to do was "explain common behaviors or counterintuitive behaviors that we see in children who have been sexually abused that might be difficult for adults to relate to." This article stated that the categories Summit described were not necessarily present in all children who have been sexually abused and warned that CSAAS should not be treated as a diagnostic tool.
Washington testified that she did not know anything about the facts of this case and explained that her role at trial was "to provide information related to how victims of child sexual abuse commonly react and how they might talk about or disclose about child sexual abuse, but it is not to diagnose any particular child or determine whether any particular defendant is guilty or not."
Washington testified that CSAAS is a "widely accepted model within the mental health community." It includes five categories-secrecy; helplessness; entrapment and accommodation; delayed, unconvincing and inconsistent disclosures; and retractions-and a child's response to sexual assault may fall into one, several or all of these categories. Washington testified that "we see lots of variability in how children respond after child sexual abuse, but CSAAS provides some information about most common patterns and some counterintuitive patterns."
Washington explained that the secrecy category includes worries children have about disclosing abuse, such as that people might be upset with them if they tell or might not believe them, that they might have to go to foster care, or that the perpetrator may get in trouble. Children often have a preexisting positive relationship with the perpetrator and the experience of abuse can be very confusing because the perpetrator who is supposed to be protecting them is hurting them at the same time. Lack of a reliable parent in the home could contribute to the secrecy element of CSAAS if the perpetrator has been the person taking care of the child's needs, or if the child has learned that the other caregiver will not believe or help, which may make the child feel helpless.
Washington testified that children typically acquiesce in the abuse rather than trying to fight off the perpetrator. The perpetrator is usually physically bigger and stronger, and typically more sophisticated regarding relationship skills and able to use the preexisting relationship with the child to get the child to go along with them. Delayed disclosure is typical for children who are known victims of sexual abuse. Contrary to common assumptions that children will share all the details of their abuse at once, and share the same details each time they disclose, "what we tend to see instead is that children use incremental disclosures," sharing "little bits and pieces of information at once." This may be because they are experiencing symptoms of trauma and shut down because it is "overwhelming for them to share all the details." They may also be testing what reaction they will get, shutting down if the reaction is negative and sharing further details if they get support. Washington acknowledged on cross examination that an immediate report of sexual abuse, or consistency in the allegations over time, would not be inconsistent with sexual assault victim behavior but stated that delayed disclosure is the "most common" and that there is often "some variability in the specific details that are shared over time."
Washington explained that the entrapment and accommodation category of CSAAS refers to children feeling unable to stop ongoing abuse and developing coping strategies, such as wearing multiple layers of clothing or pretending to be asleep when the perpetrator comes into the room. The child may develop mental health symptoms, which may be "internalizing" (depression, anxiety, self-harm) or "externalizing" (arguing with authority figures, refusing to go to school, substance abuse), and there may be developmental regression and trauma symptoms. In Washington's experience of working with children known to be victims of sexual abuse, it would not be unusual for a child to appear detached when talking about the abuse, which is likely a coping strategy to disconnect from the emotional experience of the event. Washington testified that there should be no expectations for how a sexually abused child appears, as children respond in "really varied ways" and their presentation may depend on their comfort level in a given situation, such as talking with a therapist versus testifying in court.
D. Defendant's Defense
Defendant denied having any sexual contact with Jane Doe 1 or Jane Doe 2. He testified that in 2014, when Jane Doe 1 was nine years old, he was working as a cook at a restaurant from 9 a.m. to 3 or 4 p.m., and at a food truck on weekends. He typically watched Jane Doe 1 after school three afternoons a week and Jane Doe 2 was sometimes there also. Defendant sometimes watched the girls when Cecilia went to the casino (sometimes on Wednesdays, sometimes Thursdays and sometimes Fridays), "almost always" both together but sometimes one or the other. He testified that "most of the time" Jane Doe 1 was with the babysitter; Jane Doe 2 was sometimes with the babysitter and sometimes with her father. Defendant denied ever having sleepovers in the living room with the girls or taking care of them when Cecilia was at work on weekend days.
Defendant testified that he did not have a close relationship with Jane Doe 1: When he and Cecilia got together, Jane Doe 1 did not like him much because she had a relationship with her father, and this did not change because she "always had a temper so I didn't really talk to her a lot." His relationship with Jane Doe 2 was very different because she was only a year and a half old when he met Cecilia and he "welcomed her like my own daughter." Jane Doe 2 loved him like a father and he preferred to spend time with her because she was closer to him and wanted to go with him wherever he went. Defendant acknowledged on cross examination that he told Detective Raymond he was "like a dad" to Jane Doe 1 and, when questioned about the difference between what he told the detective and his trial testimony, testified that he initially thought of both girls as his daughters but his relationship with them went "downhill" when Felipe returned to Santa Rosa.
Defendant testified that Cecilia told him about Jane Doe 1's accusations on the day Jane Doe 1 and Felipe came to talk to Cecilia about it, after they left. When Cecilia told him he had to leave the house, he protested that he did not do anything but she insisted that he leave. He lived with his parents for two or three months, then went to Mexico to visit family and the church of the Virgin of Guadalupe, to whom he was devoted. While in Mexico, he called Cecilia and told her, "I swear to you by the Virgin Mother I didn't do anything." After he was arrested, he spoke with Detective Raymond and agreed to have his blood tested.
Defendant's sister testified that she never saw him make inappropriate sexual advances toward Jane Doe 1 or Jane Doe 2, the girls never appeared to be afraid of him and she never observed a change in either girl's attitude toward him. Defendant had two daughters in their 20's, from a marriage that lasted at least 16 years. She did not know whether he was still married when he started his relationship with Cecilia. Defendant's daughters had not spoken to him since he became involved with Cecilia.
II. Procedural Background
A second amended information filed on August 11, 2021, charged defendant with eight offenses against Jane Doe 1: Three counts of sexual intercourse with a child 10 years old or younger by a defendant 18 years old or older (Pen. Code, § 288.7, subd. (a)) (counts 1, 3, 5); four counts of committing a lewd act on a child under age 14 (id., § 288, subd. (a)) (counts 2, 4, 6, 8); and one count of oral copulation with a child 10 years old or younger by a defendant 18 years old or older (id., § 288.7, subd. (b)) (count 7). The information charged ten offenses against Jane Doe 2: Two counts of oral copulation with a child 10 years old or younger by a defendant 18 years old or older (id., § 288.7, subd. (b)) (counts 9, 11); two counts of sexual intercourse with a child 10 years old or younger by a defendant 18 years old or older (id., § 288.7, subd. (a)) (counts 13, 15); and six counts of committing a lewd act on a child under age 14 (id., § 288, subd. (a)) (counts 10, 12, 14, 16, 17, 18). Enhancements under Penal Code section 667.61 were alleged in connection with the lewd act counts. (§ 667.61, subds. (e)(4) [multiple victims], (j)(2) [victim under age 14].)
After a trial, the jury found defendant guilty of all counts and found the enhancement allegations true. Defendant was sentenced on December 9, 2021, to a prison term of 220 years to life.
This timely appeal followed.
DISCUSSION
I.
The Exclusion of Evidence That Cecilia Applied for a U Visa Does Not Require Reversal.
Defendant contends the trial court erred in granting the People's in limine motion to exclude evidence that Cecilia applied for a U Visa based on the alleged abuse of her daughters. A U Visa is "a temporary nonimmigrant visa created by Congress to provide legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized." (People v. Morales (2018) 25 Cal.App.5th 502, 506.) In defendant's view, the U Visa application was relevant impeachment evidence because it suggested a motive for Cecilia to fabricate or embellish her testimony, and excluding it was prejudicial because cross examination regarding the U Visa application would have severely undermined the prosecution witnesses' credibility, which was critical due to the absence of physical evidence of abuse.
The People maintain the trial court properly exercised its discretion in finding the evidence was not probative in the circumstances of this case. Alternatively, the People argue any error in excluding the evidence was harmless.
A. Background
During discussion of in limine motions on August 9, 2021, the prosecutor told the court she had provided the defense a copy of Cecilia's application for a "U Visa" and asked that the application not be admitted, noting that it contained confidential information. Defense counsel had no objection with regard to exclusion of the visa application itself or details in it, but argued he wanted to be able to impeach Cecilia pursuant to case law holding that evidence of a witness's application for a U Visa "would be potential bias and grounds to impeach."
The court initially asked why Cecilia's immigration status was relevant. Defense counsel stated that the district attorney "wrote a documentation on her behalf saying that she was truthful and very helpful and based on that, her helpfulness in prosecuting my client, they wanted her to . . . attain Visa status." The prosecutor argued the application was not relevant and lacked probative value because the district attorney's office has nothing to do with the application other than certifying on a federal form that "this person was a victim of a violent crime or somehow involved in a violent crime, they have participated in the process" and "[w]e make no guarantees or representations to them as we have no standing to say whether or not that affects their immigration status." The prosecutor noted that "Catholic Charities" helped Cecilia with the application and the prosecutor had not spoken with Cecilia about it.
Defense counsel, citing People v. Villa (2020) 55 Cal.App.5th 1042 as authority that a U Visa application is relevant for impeachment, argued that the bias making the application relevant "doesn't come from it being coupled with the D.A.'s office . . . just the U Visa, itself, would be grounds to impeach [Cecilia], the fact that she applied for that after these allegations were made." The court was not familiar with the issue and, after initially suggesting it needed more information about whether the prosecutor's office was offering Cecilia any benefit for testifying, said it would look at Villa and see if the application had any relevance "merely because she is seeking it."
At a subsequent hearing on August 13, the court stated that it found the timing of the application relevant and questioned counsel in order to determine whether it was necessary to hold an Evidence Code section 402hearing as the court had done in Villa. The prosecutor represented that the district attorney's office first received Cecilia's visa application from a local nonprofit, Catholic Charities, on July 5, 2019, and the prosecutor did not know when Cecilia first spoke with the nonprofit about it. The prosecutor explained that she found the application on the "person page in [her] system" for Cecilia, she had not discussed it with Cecilia and there was no information in the system indicating anyone in the office had spoken with Cecilia about the application before the office received it. The prosecutor stated that Cecilia had had the same victim advocate "since the beginning" and "[t]he conversation about a U Visa would typically go through her."
Further statutory references will be to the Evidence Code except as otherwise specified.
Defense counsel told the court he did not dispute this factual scenario and therefore was not requesting an evidentiary hearing. Counsel argued that the fact of the U Visa application was relevant for impeachment because a U Visa entitles a victim of crime to "additional benefits" and the right to cross examine is "not contingent on the People being involved in the U Visa or the timeline," only whether at the time the witness testifies there is a U Visa issue that "potentially provides a benefit to them that would potentially color their testimony."
In further arguments, the prosecutor urged that timing was important because the U Visa application came more than a year after Jane Doe 1's initial statement to law enforcement and five months after Jane Doe 2's second statement, and there had been no change in Cecilia's statements, and that the evidence should be excluded under section 352. When defense counsel argued that Cecilia at first did not believe Jane Doe 1's report of abuse and "the U Visa could explain why her position has changed," the prosecutor represented that Cecilia "essentially started to believe her daughter" on May 13, the day Cecilia asked defendant to leave the home, and in her May 21 statement at the police department forthrightly said that at first she was shocked, did not believe Jane Doe 1 and questioned her further, but now believed the abuse happened and had come to report it. Defense counsel disagreed, interpreting Cecilia's statements to the police in May 2018 as just saying it was "probably . . . best for [defendant] to move out," and stated that by February 2019 her position clearly had changed. Defense counsel thought an immigration officer testifying as an expert would be able to give the jury "a basic understanding of what the U Visa entails" in no more than 20 minutes of testimony on direct.
The prosecutor argued that the certification signed by the prosecutor's office directly states it provides no promises about the victim's ability to obtain a visa, admission would lead to an undue consumption of time because of the need to explain the visa process to the jury, and the jury should not be given a basis for speculating that convicting defendant would lead to permanent residence status for Cecilia.
The trial court recognized that "in an appropriate situation . . . the U Visa could be relevant in a case such as this" and agreed with defense counsel that it "probably would not take up an inordinate amount of the jury trial." The court found the evidence was not probative, however, because the visa was sought "a number of months after disclosure to law enforcement" and the district attorney's office did not discuss the visa with Cecilia or her daughters. The court excluded the evidence because it would "bring in an issue that is confusing and is not relevant to the credibility" of Cecilia, Jane Doe 1 or Jane Doe 2.
B. Governing Principles
1. Impeachment evidence
" 'Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness,' including by 'cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness.' (Davis v. Alaska (1974) 415 U.S. 308, 316.) 'The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony."' (Ibid.)" (Villa, supra, 55 Cal.App.5th at pp. 1050-1051.) Indeed, "among the many varieties of impeachment evidence, bias has traditionally been viewed as especially powerful." (People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1280 (Castaneda-Prado).)
Nevertheless, a defendant's right to cross examine a witness on potential bias or ulterior motive is not absolute and" '[a] trial court may restrict defense cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.' (People v. Whisenhunt (2008) 44 Cal.4th 174, 207; see also People v. Brown (2003) 31 Cal.4th 518, 545 [a trial court's reliance on Evid. Code, § 352 to exclude evidence of marginal impeachment value does not violate a defendant's right to confront and cross-examine witnesses].) Evidence Code section 352 gives the trial court discretion to 'exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352 (section 352).)" (Villa, supra, 55 Cal.App.5th at p. 1051.) "On appeal, we will uphold a trial judge's exercise of discretion under section 352 unless it was exercised in an arbitrary, capricious, or patently absurd manner. (People v. Johnson (2019) 8 Cal.5th 475, 521.)" (Ibid.)
As our colleagues in Division 4 recently explained, however, a trial court ruling that completely precludes cross examination for bias implicates the defendant's rights under the Sixth Amendment to the United States Constitution. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1282 ["Sixth Amendment circumscribes the trial court's discretion"].) While trial courts have" 'wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant'" (id. at p. 1281, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall)), "[w]here a trial court effectively renders cross-examination an exercise in futility, we must . . . ask a further, purely constitutional question whether '[a] reasonable jury might have received a significantly different impression' of the challenged witness's credibility if the proposed line of cross-examination had been permitted." (Castaneda-Prado, at p. 1282, quoting Van Arsdall, at p. 680.)
2. Application to U Visa Evidence
Villa, the first published California case to address the admissibility for impeachment of evidence that a prosecution witness has applied for a U Visa, held that such evidence is" 'relevant to show motive and/or bias'" and to the witness's credibility, and noted that cases from other jurisdictions had reached the same conclusion. (Villa, supra, 55 Cal.App.5th at p. 1051, citing State v. Del Real-Galvez (Or. App. 2015) 346 P.3d 1289 (Del Real-Galvez); State v. Valle (Or. App. 2013) 298 P.3d 1237 (en banc) (Valle); Romero-Perez v. Commonwealth (Ky.Ct.App. 2016) 492 S.W.3d 902, 905; State v. Perez (S.C. 2018) 816 S.E.2d 550.) Evidence that a witness has applied for a U Visa as a victim of abuse (or, as here, as the parent of a minor victim of abuse) in connection with the case against the defendant, and that the prosecutor's office has "signed off on the application," "would allow 'a jury [to] infer that [the witness] had a personal interest in testifying that she was a victim of sexual abuse . . . by [the] defendant.'" (Villa, at p. 1052, italics omitted, quoting Valle, supra, 298 P.3d at p. 1243.)
As one court explained, "A U-Visa enables victims of certain crimes, including domestic violence, to reside lawfully in the United States for a period of four years, which may be extended upon certification by a law enforcement official that the individual's continued presence in the United States is necessary to assist in the investigation or prosecution of criminal activity. See 8 U.S.C. §§ 1101(a)(15)(U)(iii), 1184(p)(6). Once an individual has resided continuously in the United States for three years following the receipt of a U-Visa, she is eligible to apply for lawful permanent residency. See 8 U.S.C. § 1255(m) (2012). 'An alien granted U-1 nonimmigrant status is employment authorized incident to status.' 8 C.F.R. § 214.14(f)(7)(2013). [¶] In short, the U-Visa creates a pathway whereby an illegal immigrant may be able to obtain lawful permanent residency within three years. . . . [¶] One can readily see how the U-Visa program's requirement of 'helpfulness' and 'assistance' by the victim to the prosecution could create an incentive to victims hoping to have their U-Visa's granted. Even if the victim did not outright fabricate the allegations against the defendant, the structure of the program could cause a victim to embellish her testimony in the hopes of being as 'helpful' as possible to the prosecution. See Michael Kagan, Immigrant Victims, Immigrant Accusers, 48 U. Mich. J.L. Reform 915, 945 (2015) ('The U visa . . . gives witnesses a potentially powerful motive to make false or exaggerated reports.')." (Romero-Perez v. Commonwealth, supra, 492 S.W.3d at p. 906.)
Relevance, of course, "is a low bar.' "Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210, italics added.)" (Villa, supra, 55 Cal.App.5th at p. 1052.) The People do not disagree that evidence of a victim's U Visa application may be relevant for impeachment evidence.
But "relevance only begins the analysis." (Villa, supra, 55 Cal.App.5th at p. 1052 .) In Villa, a domestic violence victim testified at a section 402 hearing that she was unaware of the U Visa program when she gave her statement to the police and testified at the preliminary hearing, and her trial testimony was the same "except for some unimportant details." (Villa, at p. 1044.) Villa concluded that these facts made "the probative value of the evidence minimal, easily outweighed by the potential for wasted time and jury confusion." (Id. at pp. 1044-1045.) Counsel would have had to examine the victim's preliminary hearing testimony in detail to determine whether she had changed her story, and the parties "would reasonably have sought to put on additional witnesses to testify about when [the victim] had learned about the U visa program, [her] discussions with the district attorney about the visa program and what was expected of her, and the status of the application." (Id. at p. 1053.) Expert testimony would have been required to "educate the jurors about the conditions on obtaining a U visa, the process of applying for one, the likelihood the visa would be approved, and the precise effect this would have had on [the victim's] immigration status," and "these complexities would likely have bogged the jury down in collateral issues and prevented it from focusing on the evidence of Villa's conduct." (Ibid.) Also, there was "at least some potential for prejudicing the jury against" the victim, as "one or more jurors might be inclined to view her unfavorably if they found out she could use her standing as a victim of abuse to gain a path to legal immigration status." (Id. at pp. 1053-1054.) Villa concluded that although the U Visa evidence was relevant, the trial court did not abuse its discretion in excluding it and any error was harmless because there was "overwhelming" physical evidence of the abuse. (Id. at pp. 1044-1045.)
Castaneda-Prado, supra, 94 Cal.App.5th 1260, the only other published California case we are aware of addressing this issue, presents a "polar opposite" scenario. (Id. at p. 1286.) The defendant was convicted of committing lewd acts on two children, one of whom ("Doe 2") testified at the preliminary hearing that she believed she was helping her mother obtain a U Visa by accusing the defendant of sexual molestation. (Id. at p. 1267.) Castaneda-Prado distinguished Villa, first, because there was no corroborating physical evidence and the case therefore "turned almost entirely on credibility," meaning the U Visa evidence was "of weighty probative value on a critical issue." (Castaneda-Prado, at p. 1287.) Second, Doe 2 "admitted she knew of and was motivated by potential U visa benefits when she first gave a sworn statement accusing [the defendant] of abuse" (id. at p. 1288), and her testimony "grew more detailed and more incriminating to [the defendant] over time." (Id. at p. 1289.)
Castaneda-Prado determined that the record did not support the trial court's concerns that the U Visa evidence would be unduly time consuming, because Doe 2's testimony that she was motivated by the desire to help her mother obtain a U Visa obviated the need for expert testimony to explain the visa process or lengthy exploration of Doe 2's understanding of the role her testimony could play. (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1288-1289.) Nor did the record support the trial court's concern with prejudice: Since there was no evidence either Doe 2 or the defendant were undocumented and Doe 2's mother was not a witness, any concern over the jury's views regarding immigration status were "attenuated at best." (Id. at pp. 1289-1290.) Castaneda-Prado held the trial court abused its discretion by excluding the evidence under section 352 because "the probative value of the proffered evidence of bias here was weighty, and there was virtually nothing of any significance on the other side." (Castaneda-Prado, at p. 1290.)
Because the evidence at issue was not "of 'marginal' relevance [citation] or otherwise inadmissible under a routine exercise of the trial court's authority to regulate the limits of cross-examination," Castaneda-Prado went on to consider whether the defendant's confrontation rights were violated and court concluded that" '[a] reasonable jury might have received a significantly different impression' of the challenged witness's credibility if the proposed line of cross-examination had been permitted. (Van Arsdall, supra, 475 U.S. at p. 680.)" (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1290-1291, 1282.) The court noted that Doe 2's testimony was "the most crucial" because the defense was able to attack Doe 1's credibility with evidence of "her reputation for falsity and manipulation of others" while its cross examination of Doe 2 could point out only that there were a few discrepancies between her account and Doe 1's and that Doe 2 added a new incriminating detail for the first time in her preliminary hearing testimony. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1292.) The U Visa evidence would have given the defense "a powerful basis to question [the victim's] veracity" and "a reasonable jury, presented with that avenue of attack, could have viewed Doe 2's testimony as the confabulated recollections of a 16-year-old who found a way to help her mother attain legal residency, while also supporting a close friend she believed was experiencing the trauma of recalled childhood memories of abuse that Doe 2 had not in fact witnessed and in fact knew nothing about." (Id. at p. 1292.) The confrontation clause violation was not harmless beyond a reasonable doubt because Doe 2 was "the most crucial prosecution witness in the case; her testimony was not cumulative, since it added new, more incriminating detail to Doe 1's account; and nothing decisively corroborated or contradicted her account"; the prosecution's case did not compel a conclusion that the defendant was guilty; and the prosecutor's closing argument disingenuously "highlighted the absence of any proven basis to question the motives of either [victim]." (Id. at pp. 1293-1294.)
Under Van Arsdall, the factors relevant to the prejudice analysis are" 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution's case.' (Van Arsdall, supra, 475 U.S. at p. 684.)" (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1293.)
C. Analysis
1. Section 352
With respect to probative value, the present case involves nothing like the victim's admission of a motive to help her mother obtain immigration benefits in Castaneda-Prado. The excluded evidence in Castaneda-Prado did not just suggest a basis for inferring the witness might have a personal interest in testifying against the defendant; it established, in and of itself, that she did have such a personal interest. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1289 ["based on Doe 2's preliminary hearing testimony alone-without more-Castaneda-Prado had already established a foundation for cross-examination questions on the topic of expected U visa benefits"].) And the witness was critical to the prosecution's case.
Here, the circumstances undermine an inference that Cecilia's testimony was motivated by her wish to obtain a U Visa, and Cecilia was not the prosecution's critical witness. As to the latter, Jane Doe 1 and Jane Doe 2 were the critical witnesses against defendant. Cecilia did not observe any abuse; her testimony described her observations of and reactions to the girls' disclosures. Defendant does not argue the girls' testimony was motivated by the U Visa application or even that they knew about it; nor does he directly argue Cecilia coached the girls to fabricate or embellish their testimony or point to any change or addition of incriminating detail in the girls' descriptions of the abuse that might suggest fabrication or embellishment. Rather, his argument is that Cecilia changed her story after first disbelieving Jane Doe 1's allegations, and the U Visa application gave her a reason to say she believed the allegations and fabricate or embellish her testimony. This mattered, defendant urges, because the People's case depended on the jury finding the girls credible, "their own mother . . .did not initially find them credible" and without the U Visa evidence, the jury was led to believe that Cecilia "came around" because the girls were telling the truth.
The factual premise of defendant's argument-that Cecilia "change[d] her tune . . . in 2019, after she submitted the [v]isa application to the District Attorney's office"-is not supported by the record. Cecilia did initially reject Jane Doe 1's accusations against defendant and believed Jane Doe 1 was lying-as she, Felipe and Jane Doe 1 all testified. But the record indicates Cecilia's initial disbelief lasted only a short time: Within a few days of Jane Doe 1's initial disclosure on May 9, 2018, Cecilia had kicked defendant out of the house, and on May 21, 2018, Cecilia and Felipe took Jane Doe 1 to the police to report the abuse. This was more than a year before the prosecutor's office received the visa application in July 2019. The prosecutor had no information about when Cecilia first spoke with the nonprofit about the application, but nothing in the record suggests it was before Jane Doe 1 gave her statement to the police in May 2018. The timeline thus undermines any suggestion that Cecilia began to express belief in the abuse allegations in order to support an application for a U Visa or that she fabricated or embellished her testimony for this purpose.
We recognize there is no affirmative evidence Cecilia did not know about U Visas in May 2018 analogous to the victim's testimony in Villa that she was unaware of the U Visa process when she testified at the preliminary hearing. (Villa, supra, 55 Cal.App.5th at p. 1048.) That evidence was adduced in Villa when the trial court conducted an evidentiary hearing for the purpose of ascertaining when the victim found out about the U Visa program. (Ibid.) Here, defense counsel told the court he was not requesting an Evidence Code section 402 hearing because he did not dispute the facts as the prosecutor stated them. The resulting record does not support defendant's assertion that Cecilia changed her mind about the truth of Jane Doe 1's allegations after applying for a U Visa.
Additionally, defendant's argument depends on inferences that are questionable in the circumstances of this case. Since defendant was Cecilia's boyfriend and her relationship with Jane Doe 1 was problematic, it is not particularly surprising that Cecilia initially thought Jane Doe 1 was lying, especially as the evidence indicates Cecilia soon appeared to believe the allegations were or at least could be true. This makes it less likely the jury would attach importance to Cecilia's initial distrust of Jane Doe 1's report. Further, defendant's suggestion that the girls' credibility would be undermined by the fact that "their own mother . . . did not initially find them credible" implicitly assumes a trusting parent child relationship that is undermined here by the evidence of Cecilia and Jane Doe 1's poor relationship and the apparent disregard for Jane Doe 1's well-being reflected in Cecilia's seemingly callous response when she saw the cuts on Jane Doe 1's arm, as well as her conduct after receiving the call from Felipe on May 9, remaining at the casino with defendant for an hour and a half and mentioning nothing to him then or during the hour-and-a-half bus trip back to Santa Rosa.
Defendant stresses the incentive a victim of crime (or the victim's parent) may have to help the prosecution in order to obtain the path to legal residency afforded by a U Visa (Romero-Perez v. Commonwealth, supra, 492 S.W.3d at p. 906) and financial benefits such as food stamps (see State v. Perez, supra, 816 S.E.2d at p. 552). We do not question the power of this incentive and, accordingly, the relevance, of a U Visa application as impeachment evidence. But this does not answer whether, in a specific case, evidence of a U Visa application supports the inference that witnesses fabricated or embellished testimony in order to assist the prosecution. Here, as we have explained, it does not.
Defendant argues that the U Visa "gave [Cecilia] the financial means to support her family," Cecilia "desperately needed the monetary benefits a U Visa would confer," and both she and Jane Doe 1 testified that they would be homeless without defendant's financial support. There is no evidence in the record that Cecilia's application was granted or what financial benefits accompany a U Visa or application for one, and defendant overstates the testimony as to Cecilia's financial situation in general. The mobile support team therapist who spoke to Jane Doe 1 at the police station on May 18 testified that Jane Doe 1 said she did not disclose the abuse at the time because "she was afraid that her mother would become homeless" if defendant no longer supported them, and Jane Doe 1 testified that she was "worried that maybe my mom and my sister wouldn't have anywhere to go." But defendant offers no citation to Cecilia's testimony and, from our review, it appears she simply testified that she could not afford by herself the apartment she and defendant lived in together, not that she could not afford anywhere for herself and her daughters to live. Cecilia was working; she moved in 2019 from the apartment she had lived in with defendant to a different location in Santa Rosa where she lived at the time of trial; and there is no evidence she had been homeless before she lived with defendant or has been homeless since. There is even some indication in the record that Andres was willing to help secure housing because Jane Doe 2 was with Cecilia part of the time: He testified that he helped Cecilia and defendant rent the apartment when they moved in together because Jane Doe 2 was living with them. Andres did not testify, as defendant asserts, that Cecilia was "in dire financial straights [sic] because of her gambling addiction." Andres referred to Cecilia being "addicted to the casino" as a problem they had with respect to scheduling and care for Jane Doe 2. Nor does the record support defendant's statement that the family's financial situation was "more dire than anticipated" because Cecilia was forced to pay child support to Felipe. Cecilia testified that she was "very upset" about this because "he was the one who left" and she "had been responsible for our daughter ever since she was very small, and here I was having to pay child support."
For all these reasons, the probative value of the U Visa evidence was severely undermined. On the other side of the Evidence Code section 352 analysis, the trial court was concerned that the proposed evidence would be confusing for the jury. To be meaningful, evidence that Cecilia applied for a U Visa issue would have had to be accompanied by at least some explanation of the process, requirements and significance of this type of visa. As we agree with the trial court's determination that, in the circumstances here, the application would not have provided "much of a basis to question" Cecilia's testimony, or that of her daughters (Villa, supra, 55 Cal.App.5th at p. 1052), admitting the U Visa evidence would have directed the jury's attention to collateral issues and the trial court "rightly recognized introducing the topic would have created a substantial risk of distracting and confusing the jury." (Villa, at p. 1053.)
Unlike the trial courts in Villa, supra, 55 Cal.App.5th at p. 1048, and Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1275, 1289, the trial court here was not particularly concerned about U Visa evidence being unduly time consuming.
Additionally, although the trial court here did not discuss the potential for prejudice from introduction of this evidence, concerns that were discussed in Villa are even more evident here. The Villa court was concerned that the U Visa evidence might cause jurors to view the victim's testimony unfavorably if they did not believe her standing as an abuse victim should give her "a path to legal immigration status." (Villa, supra, 55 Cal.App.5th at pp. 1053-1054.) In Villa, the jury already knew from other evidence in the case that the victim was undocumented. Here, the potential for prejudice was greater because there was no evidence that Cecilia, or anyone else in the family, was undocumented; evidence of the U Visa application would have introduced the issue for the first time. As Villa noted, California law is protective of evidence of immigration status. (§ 351.4; Villa, at p. 1054.)
Section 351.4 prohibits disclosure of a person's immigration status in open court absent a determination by the court in an in camera hearing that the evidence is admissible. While Villa stated that concern with the sort of prejudice it discussed was the reason for Evidence Code section 351.4's restrictions on evidence of immigration status (Villa, supra, 55 Cal.App.5th at p. 1054), the legislative history of the statute focuses on the need to encourage participation in the legal system by undocumented immigrants who may be less likely to report crime and cooperate with law enforcement due to fear of deportation if their status is exposed in court. (E.g., Assem. Com. on Judiciary, Rep. on Sen. Bill No. 836 (2021-2022 Reg. Sess.) June 8, 2022 as amended February 18, 2022, pp. 4-9.) Regardless, the point is that California law recognizes the potential for prejudice from disclosure of a person's immigration status and is protective of such disclosure.
In our view, the trial court's decision to exclude the U Visa evidence under Evidence Code section 352 was not an abuse of discretion: What little probative value the evidence had was substantially outweighed by the probability that its admission would create substantial danger of undue prejudice or confusing the jury.
We are not persuaded to the contrary by Del Real-Galvez, supra, 346 P.3d 1289, one of the out-of-state cases Villa cited, which defendant argues is "factually on all fours" with the present case. In Del Real-Galvez, a 15-year-old girl alleged that her uncle sexually abused her when she was younger. (Del Real-Galvez, at p. 1291.) As a criminal case proceeded, the girl's mother applied for a U Visa based on the sexual abuse allegations; Catholic Charities Immigration Legal Services wrote to the district attorney's office that the mother might be eligible and the prosecutor signed a certification stating the mother had been and would continue to be helpful in the case. (Ibid.) In offers of proof outside the presence of the jury, defense counsel elicited the girl's testimony that she knew her parents were undocumented and another witness's testimony that, about two years before the girl's disclosure, she heard the mother tell the girl,"' "we're going to say that your father touched you, so that way I can have my visa and we'll put the house in your name and I will give you a truck as a gift." '" (Id. at p. 1292.) The trial court excluded the evidence as not relevant. (Ibid.)
Del Real-Galvez found prejudicial error, rejecting the prosecution's argument that evidence the girl knew an allegation of abuse would be helpful for obtaining a visa was not relevant unless the girl knew or believed her mother would pursue a visa application if she made the accusation, which the defense had not shown. (Del Real-Galvez, supra, 346 P.3d at p. 1294.) Relying on its prior decision in Valle, supra, 298 P.3d 1237, Del Real-Galvez explained that "because 'the jury is entitled to hear all the facts relating to the possible bias and self-interest of the witness[,]' evidence of a witness's bias or interest must be received unless there is a reason to exclude it," and "a cross examiner is given wide latitude" to elicit testimony to demonstrate the nature of a witness's bias or interest. (Del Real-Galvez, at pp. 1292-1293, quoting Valle, at p. 1241.) The court held the evidence should not have been excluded because the defense established a sufficient foundation by showing that the mother applied for a U Visa based on the abuse of her daughter and the daughter knew alleging sexual abuse could help her mother obtain the visa. (Del Real-Galvez, at p. 1293.) The error was prejudicial because "[t]he jury was not fully informed about [the victim's] potential motive to fabricate allegations" and "potential interest in testifying in a certain manner"; her credibility was "central to the state's case"; and the prosecutor argued she had no motive to fabricate the allegations. (Id. at p. 1294.)
In Valle, after the victim alleged she had been sexually abused by her stepfather, she applied for a U Visa on the ground that she was a victim of abuse. (Del Real-Galvez, supra, 346 P.3d at p. 1292; Valle, supra, 298 P.3d at p. 1240.) The trial court excluded this evidence, finding the defense failed to establish its relevance due to insufficient evidence about eligibility requirements for the visa. (Ibid.) Valle found prejudicial error because the jury could infer the victim" 'had a personal interest in testifying that she had been abused'" just from her testimony that she applied for the U Visa. (Del Real Galvez, at p. 1293, quoting Valle, at p. 1243.)
Del Real-Galvez differs factually from the present case in that there was direct evidence the mother wanted to fabricate an abuse claim in order to obtain a U Visa. Even aside from that factual distinction, the Del Real-Galvez court analyzed the U Visa issue solely in terms of relevance, emphasizing the" 'very low'" threshold for establishing that evidence is relevant. (Del Real-Galvez, supra, 346 P.3d at p. 1293, quoting Valle, supra, 298 P.3d at pp. 810-811.) The court did not consider any of the issues pertinent to a determination whether the trial court could properly exclude the evidence under state evidentiary rules like section 352. Here, where the trial court concluded the evidence should be excluded under section 352, consideration of these issues is essential.
2. Confrontation Clause
As Castaneda-Prado explained, where a trial court's ruling completely precludes cross examination, a proper exercise of discretion to exclude evidence under section 352 does not end the necessary inquiry. Here, exclusion of the U Visa evidence precluded cross examination on whether Cecilia was motivated to assist with the prosecution by her wish for a U Visa, although the defense was able to challenge her credibility on other bases. For example, defense counsel questioned Cecilia about remaining at the casino after Felipe called her on May 9 and about her remarks to Jane Doe 1 about cutting herself more, then in closing argument pointed to these as examples of poor parenting; questioned Cecilia's description of the incident in which Jane Doe 1 locked herself in the bathroom and threatened to kill herself, noting that Jane Doe 1 denied this happened and suggesting that if it had, Jane Doe 2 could not have failed to hear it, as Cecilia indicated; and highlighted Andres's testimony that Cecilia was "addicted" to the casino.
To the extent it is necessary for us to determine whether the trial court's ruling violated defendant's constitutional right to confrontation by precluding him from cross examining Cecilia about her U Visa application, we conclude it did not for essentially the same reasons we found no abuse of discretion under state law. In short, a reasonable jury would not have" 'received a significantly different impression' of [the witness's] credibility if the proposed line of cross-examination had been permitted." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1281, quoting Van Arsdall, supra, 475 U.S. at p. 680.) In light of the timeline, the low probative value of the U Visa evidence to explain Cecilia's change from disbelieving Jane Doe 1's abuse allegations to supporting the prosecution makes it highly unlikely this evidence would have significantly affected the jury's evaluation of the girls' credibility. This is particularly the case because the jury was offered other, more direct reasons for questioning the girls' accusations than the fact Cecilia initially did not believe Jane Doe 1. For example, defense counsel highlighted evidence of Jane Doe 1's problems with Cecilia and desire to live with her father, as well as inconsistencies in her statements, such as her denial at trial that defendant made the comments about giving her a gift and not wanting to get her pregnant that the mobile support team therapist testified Jane Doe 1 related to him. Defense counsel also argued that Jane Doe 1 denied the incident Cecilia described in which Jane Doe 1 locked herself in the bathroom. Defense counsel offered a host of reasons to reject Jane Doe 2's accusations, including the fact that she initially did not report any abuse, the likelihood that she was aware of her sister's accusations (despite the prosecution witness' efforts to show the contrary) and the inference that she wanted to help her sister by having defendant convicted.
Defense counsel's argument that Jane Doe 1 "said that never happened" overstated Jane Doe 1's actual testimony, which was only that she did not lock herself in the bathroom on the day she told Cecilia defendant had raped her.
For the same reasons, any error in excluding the U Visa evidence, and consequent opportunity to cross examine Cecilia about it, was harmless beyond a reasonable doubt. We recognize that no physical evidence corroborated the girls' claims of abuse and the case therefore turned on the witnesses' credibility. But, as we have said, defendant does not suggest that the girls were motivated by or aware of the visa application. As defendant himself emphasizes, U Visa evidence bore on Cecilia's credibility and whether she had a motive to fabricate or embellish her testimony; its relevance to the girls' credibility, as defendant portrays it, is through the inference that Cecilia's initial disbelief of the allegations would discredit the girls' reports of abuse in the jurors' eyes. Any inference that Cecilia falsely claimed to believe the girls and cooperated in defendant's prosecution because she wanted to obtain a U Visa is undermined, if not refuted, by the timeline showing she kicked defendant out of the house within days of Jane Doe 1's disclosure and took her to report the allegations to the police within two weeks, more than a year before the visa application was received by the prosecutor's office. We fail to see how jurors who otherwise found the girls credible and believed their reports of abuse could have been left with a reasonable doubt about defendant's guilt if they learned Cecilia was applying for a U Visa.
II. CSAAS
Defendant contends the admission of CSAAS evidence violated his constitutional rights to confrontation and due process because the theory has no proven validity, the evidence serves only as improper vouching for the complainants' credibility, and the prosecution improperly relied on the evidence for conviction. He argues CSAAS should be deemed inadmissible altogether or, at least, was improperly admitted in this case.
A. Background
Prior to trial, the defense moved to exclude CSAAS testimony on the basis that it was unreliable to prove sexual abuse occurred, its probative value was outweighed by countervailing factors under Evidence Code section 352, and the case involved no myths that needed to be dispelled with CSAAS evidence. The trial court asked for an offer of proof as to which of the CSAAS factors was present in the case and the prosecutor responded that the evidence would show all but retraction. In ruling the testimony would be permitted, the trial court emphasized that the expert witness could not testify as to specifics of the case, guilt or innocence of the defendant, or credibility of Jane Doe 1 or Jane Doe 2. In further discussion, the prosecutor represented that the witness would not discuss "percentages, likelihood of truthfulness, anything like that," there would be no case specific facts, and the testimony would be about "the model generally," what CSAAS is, and the myths the model addresses. Defense counsel argued that CSAAS lacks scientific basis and has never been "acknowledged or printed in the DSM," and that other jurisdictions have recently changed their previous acceptance of this evidence and now reject it or allow it only as to delayed disclosure. The court concluded the evidence was admissible in the limited form the prosecutor described.
Defendant says the trial court acknowledged that the California Supreme court has never authorized the use of CSAAS evidence in child molestation cases when it commented that none of the Court of Appeal CSAAS cases had been accepted by the California Supreme Court. In fact, the trial court's remarks appear to acknowledge that acceptance of defendant's arguments would require the currently composed California Supreme Court to change existing law: Following defense counsel's argument that CSAAS lacks scientific basis, the court stated that it understood the position that "just because these courts have admitted it doesn't mean that it's right or that it's relevant" but "at this point none of these Court of Appeal[] cases have been accepted by the California Supreme Court for the current makeup of the California Supreme Court to go back into this area and to make any change in the current appellate law."
B. Properly Limited CSAAS Evidence Is Admissible in California Courts.
Defendant argues that CSAAS is a 40-year-old doctrine that has never been substantiated and asks us to join courts in other jurisdictions that have "[i]n recent years" found it "scientifically baseless" and "inadmissible for any purpose whatsoever." He cites several cases from states whose courts have long been critical of CSAAS testimony (State v. Ballard (Tenn. 1993) 855 S.W.2d 557, 561-562 [noting court's prior refusal to allow appeals from lower court rulings that "consistently" found CSAAS type evidence inadmissible and finding reversible error where expert testified that child victims in case exhibited symptoms consistent with posttraumatic stress syndrome and opined the triggering stress was sexual abuse]; King v. Commonwealth (Ky. 2015) 472 S.W.3d 523, 528-530 [rejecting CSAAS evidence due to unproven scientific validity, consistent with prior state law]; Hadden v. State (Fla. 1997) 690 So.2d 573, 578-579 [syndrome evidence inadmissible as substantive evidence of guilt in child sexual abuse prosecutions under Frye v. United States (D.C.Cir. 1923) 293 F. 1013 test for admissibility].) He particularly relies on State v. J.L.G. (N.J. 2018) 190 A.3d 442, 446 (J.L.G.), in which the court reversed its prior acceptance of CSAAS evidence after remanding for a hearing on the scientific support for such evidence. J.L.G. concluded there was "continued scientific support for only one aspect of the theory-delayed disclosure-because scientists generally accept that a significant percentage of children delay reporting sexual abuse" and held that "expert testimony about CSAAS in general, and its component behaviors other than delayed disclosure, may no longer be admitted at criminal trials." (Ibid.)
The Florida Supreme Court has since replaced the Frye test with the test adopted by the United Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. (In re Amendments to Florida Evidence Code (Fla. 2019) 278 So.3d 551, 551-552.)
Although defendant attempts to convince us otherwise, the California Supreme Court has endorsed the admissibility of CSAAS evidence when used within specified parameters. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).) As stated in People v. Munch (2020) 52 Cal.App.5th 464, 468 (Munch), McAlpin "is binding on all lower courts in this state. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) That other jurisdictions may disagree with it does not change its impact on California cases. (Ibid.)" (Ibid.)
Addressing the argument that other jurisdictions have decided to stop admitting CSAAS evidence after discovering its deficiencies, Munch explained that many of the cases cited did not in fact support the defendant's position and concluded that "the vast majority of jurisdictions and many of the jurisdictions Munch highlights have rendered decisions that are consistent with McAlpin." (Munch, supra, 52 Cal.App.5th at pp. 469-472.) Munch described State v. J.L.G., supra, 190 A.3d 442, as involving "an aberrant view of CSAAS" and discussed at length criticisms of the decision and articles it relied on. (Munch, at pp. 470-471.)
Defendant's assertion that the California Supreme Court "has chosen not to affirm" and "has not specifically endorsed" the use of CSAAS evidence in child molestation cases is an unpersuasive attempt to evade evidentiary rules he wishes to change. Discussing Court of Appeal cases that had extended to CSAAS testimony the rules established in People v. Bledsoe (1984) 36 Cal.3d 236 to govern admission of expert testimony on rape trauma syndrome, McAlpin stated: "[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation. (People v. Bowker (1988) 203 Cal.App.3d 385, 390-394; People v. Gray (1986) 187 Cal.App.3d 213, 217-220; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097-1100.) 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior. [¶] The great majority of courts approve such expert rebuttal testimony.' (Myers et al., Expert Testimony in Child Sexual Abuse Litigation (1989) 68 Neb.L.Rev. 1, 89, fn. omitted (hereafter Myers).)" (McAlpin, supra, 53 Cal.3d at pp. 1300-1301, fn. omitted.)
Defendant follows this assertion with a citation to the dissent in People v. Brown (2004) 33 Cal.4th 892, 913, which criticized the majority's "attempt to analogize to expert testimony concerning rape trauma syndrome (RTS) or child sexual abuse accommodation syndrome (CSAAS)." It is not apparent how the discussion cited supports defendant's claim.
McAlpin concluded that "the foregoing rules" were "equally applicable" to the issue in that case, the admissibility of a police officer's testimony that "it is not unusual for a parent to refrain from reporting a known molestation of his or her child." (McAlpin, supra, 36 Cal.3d at pp. 1301, 1300.) The court considered expert testimony on rape trauma syndrome a "helpful" analogy and CSAAS testimony an "even more direct analogy." (Id. at pp. 1300-1301.) The California Supreme Court again approved the rules applicable to CSAAS testimony in People v. Brown, supra, 33 Cal.4th at page 906, and "CSAAS evidence has been admitted by the courts of this state since the 1991 McAlpin decision." (Munch, supra, 52 Cal.App.5th at p. 468.)
Defendant misleadingly describes McAlpin as having "noted" that "in 1988, a Court of Appeal found the evidence admissible to rehabilitate a witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation." McAlpin did not simply "note" the holding of a solitary case. It described a "series of decisions," citing three cases in the text (as shown in the quote above) and another six in a footnote, and accepted the rules established in the CSAAS cases, and its own decision in Bledsoe, as "equally applicable" to the police officer's testimony in McAlpin. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301 & fn. 4.) Defendant's attempt to minimize the import of McAlpin is meritless.
Much of the argument through which defendant attempts to persuade us to declare CSAAS evidence invalid and altogether inadmissible is similarly misleading. For example, defendant asserts that this court's decision in People v. Clotfelter (2021) 65 Cal.App.5th 30 "suggests it is time to follow" other states "and put the CSAAS 'theory' or 'framework' out to pasture" because "prosecutors 'misuse' the so-called expert testimony to make a forbidden argument 'to the jury: that it could use the CSAAS testimony to infer that [the complainants] were victims of the crimes charged.' (Clotfelter, 65 Cal.App.5th at p. 64.)"
Defendant misleadingly portrays our discussion of improper use of CSAAS evidence in the case before us as though we were warning against admission of CSAAS evidence in general due to the "likelihood of 'misuse' by prosecutors." The Clotfelter opinion discussed the purposes for which CSAAS evidence is and is not admissible, described a hypothetical misuse of the evidence, then stated, "[y]et this is precisely the argument that the prosecutor was making to the jury . . . ." (Clotfelter, supra, 65 Cal.App.5th at p. 64.) We faulted defense counsel for failing to object to the admission of CSAAS evidence because it was not relevant in that case and for failing to object to the prosecutor's misuse of the evidence in argument in that case (id. at p. 65). As Clotfelter illustrates, improperly used CSAAS testimony can indeed be prejudicial, but there is no basis in our opinion for defendant's statement that we have "already questioned the efficacy of CSAAS evidence" when used within the parameters established by California caselaw.
The alleged victims of the charged offenses denied having been touched inappropriately and there was no evidence to the contrary. (Clotfelter, supra, 65 Cal.App.5th at pp. 64-65.) The defendant's prior sexual offenses were undisputed and the defense did not question the credibility of the victims of those offenses. (Ibid.)
Defendant states that Clotfelter, "[l]ike many out-of-state cases that have abrogated CSAAS evidence, . . . noted that, in the 30-plus years since trial courts began admitting the controversial evidence, appellate courts have curtailed its use and 'cautioned' that limitations should be imposed on its admission." The example defendant provides is a quotation from People v. Bowker, supra, 203 Cal.App.3d 385, 393, stating that an expert may not give"' "general" testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused." '" As defendant's reference to a quote from a 1988 case that McAlpin relied on in 1991 demonstrates, this "curtail[ment]" of and caution about CSAAS is nothing new; it has been part of California's caselaw governing admission of such evidence from the beginning.
Defendant asks us to join the "legion" of cases holding CSAAS to be "junk science." "Legion" appears to grossly overstate the number of jurisdictions that have rejected CSAAS evidence as the "malarkey" and "hooey" defendant proclaims it to be. Defendant's list of supporting citations includes cases from four jurisdictions that reject CSAAS evidence altogether (J.L.G, supra, 190 A.3d at p. 446; King v. Commonwealth, supra, 472 S.W.3d at p. 530; State v. Ballard, supra, 855 S.W.2d at p. 562; Hadden v. State, supra, 690 So.2d at pp. 578-579), but the others are a case from Iowa involving expert testimony that would also be inadmissible in California under the rule articulated in McAlpin (State v. Pitsenbarger (Iowa App. Apr. 22, 2015, No. 14-0060) 2015 Iowa App. LEXIS 337 [statistical evidence on false reports of abuse]; see People v. Julian (2019) 34 Cal.App.5th 878, 886), one from an Ohio appellate court acknowledging the admissibility of CSAAS evidence but suggesting the state supreme court reconsider (State v. Svoboda (Ohio App. 2021) 180 N.E.3d 1277, 1299-1302 & fn. 4; see State v. Stowers (Ohio 1998) 690 N.E.2d 881, 883), and cases from three federal circuits, none of which involved the use of CSAAS evidence. (United States v. Amaral (9th Cir. 1973) 488 F.2d 1148, 1150; United States v. Green (6th Cir. 1977) 548 F.2d 1261, 1268; Friedman v. Rehal (2d Cir. 2010) 618 F.3d 142, 157, fn. 9.)
Finally, defendant's assertion that the People concede that CSAAS is scientifically unproven and unsound and that cases rejecting the validity of CSAAS were correctly decided is baseless. The People's brief simply rests on California law.
C. Admission of the CSAAS Evidence Was Within the Trial Court's Discretion.
Defendant maintains that even if CSAAS evidence is not per se inadmissible, the trial court erred in admitting it because it was offered to explain the victims' delayed disclosure and they gave reasons for the delay that were not beyond the ken of the average juror. "We review for abuse of discretion decisions regarding the admissibility of expert testimony." (People v. Sedano (2023) 88 Cal.App.5th 474, 479.)
Defendant's argument is based almost entirely on J.L.G., supra, 190 A.3d 442. As earlier indicated, J.L.G. held CSAAS testimony would no longer be admissible except as to delayed disclosure. (J.L.G., at p. 446.) The court noted that admissibility on that issue would depend on the facts of the case because expert testimony is only appropriate for issues that are "beyond the understanding of the average jury." (Id. at pp. 446, 465-466.) There, the court concluded no juror needed an expert's help to understand and evaluate the teenage victim's explanation for her delayed disclosure because she "gave sound reasons for the delay": She testified that she did not tell her mother about her abuse sooner because the defendant threatened her with a gun, she was embarrassed and she feared her mother would kill the defendant and be sent to prison "based on how her mother reacted when a friend spotted defendant lying on top of [the victim] on a prior occasion." (Id. at p. 466.)
Defendant argues that the CSAAS evidence was proffered in the present case on the issue of delayed disclosure and, as in J.L.G., was not relevant because Jane Doe 1 and Jane Doe 2 gave reasons for the delay: Jane Doe 1 because she knew her mother would not believe her and Jane Doe 2 because "she wanted to wait until [defendant] no longer lived at the house."
Unlike the concrete explanations of the victim in J.L.G.-the defendant had threatened her with a gun and she had seen her mother threaten to kill the defendant if he abused the victim-the girls' explanations here would not necessarily make sense to a juror who did not understand that it is common for children to not disclose abuse. Jane Doe 2 said she told Cecilia in February 2019 because defendant was not living with them anymore, but that was already true when Jane Doe 2 was first interviewed in May 2018. Jane Doe 1 inflicted considerable self-harm rather than disclose the abuse even to her father, despite wanting to live with him rather than with her mother. Defendant offers no basis other than his own speculation for his assertion that jurors today "do not need to be told how child molest victims 'generally' behave" because "news feeds and streaming services" on the internet discuss these matters. We do not share defendant's assumption that CSAAS evidence is no longer needed because jurors are sufficiently versed in the behavior of sexually abused children. (See People v. Lapenias (2021) 67 Cal.App.5th 162, 172 [disagreeing with assumption that" 'CSAAS testimony is no longer necessary because the public no longer harbors misconceptions about the behavior of sexually abused children' "].)
Moreover, defendant fails to acknowledge that the CSAAS evidence was offered not just on the issue of delayed disclosure but on four of the five categories addressed by such evidence-all but recantation. The girls' disclosures were not only delayed, Jane Doe 2's February 2019 disclosure of abuse that began prior to 2018 was inconsistent with the 2018 interview in which she did not disclose any abuse, and Jane Doe 1 initially refused to give her parents details about her abuse. Washington explained that contrary to the common assumption that children will share all the details of abuse at once, children who have been abused often make "incremental" disclosures. The expert testimony also addressed factors that would help explain a child's nondisclosure, including the complicated feelings associated with abuse by a person who has been caring for the child and concerns that people will be upset with them or that they or the family will suffer consequences if they tell, as well as why a child would acquiesce in on-going abuse.
Defendant's characterization of this as a case in which "the defense 'did not question the [complainants'] credibility at trial" is confounding. The defense was entirely built on claiming that the sexual abuse Jane Doe 1 and Jane Doe 2 described in their forensic interviews and in their testimony at trial in fact never happened. Washington did not vouch for the victims' credibility; she testified that she knew nothing about the facts of the case and her role was not to diagnose any particular child or determine the guilt of any particular defendant.
Defendant argues that Washington gave testimony that was akin to testimony Clotfelter, supra, 65 Cal.5th at page 64, found objectionable because it could be used to ask jurors to impermissibly find the victim was abused on the basis that the victim exhibited the same behavior as a class of actual abuse victims. Washington testified, "we know that most children, in fact, do delay their disclosures so that would be a typical scenario that we would see in children who are known victims of child sexual abuse." The trial court overruled defense counsel's objection because the reference to "known victims of child abuse" showed Washington was "not testifying that in this particular case the victims were known victims of child abuse. She's referring to the research in this area." In Clotfelter, the alleged victims testified that they were not abused, annoyed or molested by the defendant. (Clotfelter, supra, 65 Cal.App.5th at pp. 38-39, 42-43.) The prosecutor argued that although" 'the victims never thought they were victims and they didn't act like victims and they didn't present like victims and no one noticed signs that they were victims,'" the CSAAS experts were asked to testify because, in their extensive experience, victims and their families do not" 'react the way you might traditionally expect.'" (Id. at p. 63.) Although it is not made entirely clear in defendant's argument, we assume his analogy refers to a statement in the prosecutor's rebuttal argument that, as defendant describes it, "the CSAAS testimony was 'very useful' because 'it is only applicable to children that are known victims of sexual assault. That is what you have in this case." The prosecutor was responding to the defense argument that CSAAS evidence is "useless." Immediately before the remarks defendant quotes, the prosecutor stated, "CSAAS is not useless. CSAAS is very useful. Yes, it can't tell you what happened to the children, but what it can tell you is that their responses are common. There are commonalities between children." (Italics added.) The prosecutor's next remarks use Washington's testimony that delayed disclosure is common to explain "why Jane Doe 1 had mental health issues. She was holding onto this trauma, to this big secret for so long that she had no idea what to do with." We do not understand this to be an argument that the fact Jane Doe 1's disclosure was delayed proves she was abused, but that it is not inconsistent with that conclusion.
We find no abuse of discretion in the trial court's decision to admit the CSAAS evidence.
III. Defendant Has Not Established Prosecutorial Misconduct.
Defendant contends the prosecutor committed prejudicial misconduct by arguing facts not in evidence that she knew were untrue and by seeking exclusion of critical impeachment evidence in order to be able to falsely argue that her witnesses had no bias or motive to fabricate.
A. General Principles
" 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such" 'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.'" (People v. Williams (2013) 56 Cal.4th 630, 671.)" '[S]tatements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct.' [Citations.]" (People v. Armstrong (2019) 6 Cal.5th 735, 796-797.) A prosecutor may not "knowingly mislead the jury." (Ibid.)
" 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury,' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citations.]" (People v. Williams, supra, 56 Cal.4th at p. 671.)
B. The Prosecutor Did Not Rely on Facts Not in Evidence or Lie About the Validity of CSAAS.
Defendant argues that the prosecutor lied to the jury when she argued that "hundreds of research articles support the validity of [CSAAS] methodology." According to defendant, there was no testimony to this effect; the only article Washington testified about other than Summit's was "the one by Snowden that refuted the CSAAS theory by showing non-delayed disclosure was just as consistent with the syndrome as delayed disclosure"; and the prosecutor should have known her argument about hundreds of articles was untrue because she tried to elicit such testimony from Washington without success.
Preliminarily, defense counsel did not object to the prosecutor's argument at trial, thus forfeiting the misconduct claim for appeal. (People v. Brown, supra, 31 Cal.4th 518, 553.) On the merits, none of defendant's points are supported by the record. Washington expressly stated that hundreds of research studies support the components of CSAAS. Specifically, she testified on cross examination that Summit's initial article on CSAAS was the "starting point" and "since that time there's been research supporting the ideas in CSAAS," that the original article was a "clinical or theoretical piece," not based on controlled scientific studies, and that "since that time there's been hundreds of research studies that provide support for the different components." (Italics added.) Responding to defense counsel's next questions, Washington testified that these studies were "a long list of different studies by various researchers in each of the five different categories" and that she had not given any of these studies to defense counsel or the prosecutor or brought them to court. Washington's testimony supports the prosecutor's argument and refutes defendant's claim that the prosecutor lied to the jury on this point.
In his reply brief, defendant doubles down on this misconduct argument, stating that Washington testified there were" 'hundreds of research studies' that discussed 'the different components'" but "none of these studies supported the validity of CSAAS as a scientific theory" and therefore the prosecutor could not validly argue that hundreds of research articles support "the validity" of CSAAS methodology. Defendant omits from his quotation of the testimony that Washington referred to "hundreds of research studies that provide support for the different components." (Italics added.) Washington answered affirmatively when asked whether CSAAS is a "widely accepted model within the mental health community." That could hardly be the case if the "hundreds of research studies" Washington referred to as providing "support for" the components of CSAAS did not support its validity.
Subsequently, when Washington testified that an immediate report of sexual abuse would not be inconsistent with sexual assault victim behavior but delayed disclosure is the "most common," defense counsel asked what research this was based on and Washington replied, "That would be based on I believe 40, 50 different research articles supporting that children tend to delay months, years, until they're adults." Asked to name one of the articles, she testified the "Snowden article" was a "good one" that discussed "delayed disclosure as well as the disclosure process being a process versus just a onetime event." It is not apparent where defendant finds support for his description of the Snowden article as having "refuted the CSAAS theory by showing non-delayed disclosure was just as consistent with the syndrome as delayed disclosure," as we have found no other reference in the record to a Snowden article.
Finally, in the sequence that defendant offers as the prosecutor's unsuccessful attempt to elicit testimony that many articles affirm Summit's "surmise," the prosecutor asked whether part of Washington's continuing education was "reviewing all the research articles that continue to come out about CSAAS that affirm what it was that Dr. Summit said in his original article in the 1980s." Washington replied, "Yes, my continuing education would include research that is relevant to the concepts initially included in CSAAS." As defendant reads this exchange, the prosecutor "pushed" Washington to testify that "many articles 'affirm what it was [that] Dr. Summit' surmised 40 years prior" and, rather than so testifying, "[t]he farthest she would go was to say" that her continuing education included "relevant" research. Considering that Washington began her response by saying "yes," had just testified that CSAAS is a "widely accepted model within the mental health community" and had earlier testified that "hundreds of research studies . . . provide support for the different components" of CSAAS, defendant's description of this portion of the testimony is a mischaracterization.
C. Defendant Has Not Shown Intentional Misconduct with Respect to the U Visa Application.
Defendant contends the prosecutor delayed disclosing Cecilia's U Visa application until "mid-trial," despite knowing her office "issued that visa a year earlier," to "keep the jury from receiving a full picture of bias." According to defendant, the prosecutor knew that in May 2018 Cecilia did not believe defendant molested her daughters and then changed her mind after applying for the visa; knew "a U Visa was granted in 2020 but "chose not to disclose this information to the defense until August 2021"; knew the U Visa gave Cecilia and the girls reason to fabricate or embellish their testimony because "as the issuer of U Visas, the prosecution knew they can only be granted to crime victims in exchange for their help in prosecution"; and knew Cecilia needed the legal status and monetary benefits she would get with a U Visa.
Defendant's description misstates the record in virtually every respect. The prosecutor did not disclose the visa application mid-trial, as defendant states four times in his opening brief; the prosecutor raised the issue at a hearing on in limine motions on August 9, 2021, saying she had given a copy of the visa application to the defense, and the jury was not sworn in until August 16. The district attorney's office does not issue visas; the United States government does. And there is no evidence that a visa was in fact issued; the only evidence is that Cecilia applied for a U Visa and the district attorney's office signed a certification stating she was a victim of a qualifying crime and was cooperating with and participating in the criminal process.
Without acknowledging the prior mischaracterization, defendant states in his reply brief that the prosecutor first mentioned the U Visa application on the first day of trial.
Defendant brushes off his misstatements ("[i]t may be more accurate to say 'approved,' rather than 'granted,' because it seems unlikely a state prosecutor can grant a U Visa since she is not employed by a federal agency") because his fundamental point is that the prosecutor's certification that Cecilia was a cooperating victim was necessary for her to apply for a U Visa. We understand this point. But defendant's reliance on factual misrepresentations to strengthen his argument does not promote his cause.
As defendant recognizes, the prosecutor who tried this case is not the person who signed the certification on the U Visa application. According to the prosecutor's representations to the court, she was unaware of the application until she came across it on Cecilia's "person page in my system" and she then provided it to the defense and moved to exclude it. Defendant's misconduct argument relies on principles established in caselaw concerning the government's obligation to disclose exculpatory evidence to the defense (Brady v. Maryland (1963) 373 U.S. 83 (Brady)), pursuant to which the prosecutor would be deemed to have knowledge of the application because it was in the hands of the district attorney's office.
Brady material includes impeachment evidence (Youngblood v. West Virginia (2006) 547 U.S. 867, 869) and, specifically, impeachment evidence in form of favorable immigration benefits provided to a prosecution witness (United States v. Blanco (9th Cir. 2004) 392 F.3d 382, 392).
Under Brady, the scope of the duty to disclose "extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf . . . .'" (In re Brown (1998) 17 Cal.4th 873, 879, quoting Kyles [v. Whitley (1995)] 514 U.S. [419,] 437.) For Brady purposes," 'whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government.' (Giglio v. United States (1972) 405 U.S. 150, 154; Kyles, supra, 514 U.S. at p. 439.) [¶] As a concomitant of this duty, any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution. 'The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation.' (U.S. v. Payne (2d Cir. 1995) 63 F.3d 1200, 1208 (Payne).)" (In re Brown, at p. 879.)
Defendant recognizes that no Brady violation occurred in this case. He relies on these principles to argue that the prosecutor here, although personally unaware of the U Visa application, made an intentional "decision to withhold" the U Visa information in order to "increase her chances" of having the evidence excluded, preclude the defense from impeaching Cecilia, and exploit the exclusion order by arguing "facts she knew were false"-that her witnesses had "no bias, interest or motive to fabricate. Defendant offers no authority for the proposition that the deemed knowledge principles applicable to prosecutors' obligations under Brady apply, in the absence of a Brady violation, to find a prosecutor intentionally withheld information of which she was unaware.
The defense was provided with the U Visa application at or before the first hearing on in limine motions and was able to argue against the prosecutor's motion to exclude it at that hearing and a subsequent one several days later. Defendant does not suggest how earlier disclosure of the application would have made the motion to exclude less likely to succeed. We have discussed at length our reasons for finding the trial court did not abuse its discretion under section 352 or violate defendant's constitutional confrontation rights in excluding evidence of the application.
As for defendant's argument that the prosecutor improperly argued her witnesses had no bias, interest or motive to lie despite knowing this was not true, defense counsel did not object at trial to the prosecutor's comments on this point, thus forfeiting the misconduct claim for appeal. (People v. Brown, supra, 31 Cal.4th at p. 553.) On the merits, the prosecutor's argument that Cecilia, Jane Doe 1 and Jane Doe 2 did not have a motive to fabricate their testimony was not improper.
A prosecutor may not "take unfair advantage" of an order excluding evidence by arguing or implying" 'facts not in evidence that counsel knows excluded evidence could refute.'" (Castaneda-Prada, supra, 94 Cal.App.5th at p. 1294, quoting Jackson v. Park (2021) 66 Cal.App.5th 1196, 1214.) That was the situation in Castaneda-Prada when the prosecutor argued there was no evidence Doe 2 had a reason to lie or had something to gain from testifying despite knowing Doe 2 had admitted filing her declaration accusing the defendant to help her mother obtain a U Visa. (Castaneda-Prada, at pp. 1271, 1293-1294.) In Jackson v. Park, defense counsel in a civil case engaged in misconduct by (among other things) arguing there was no evidence of an arrest, conviction or blood alcohol concentration despite knowing that evidence existed but had been excluded by the court at the defense's request. (Jackson v. Park, at pp. 1205-1206, 1214.)
Here, the prosecutor's references to Cecilia, Jane Doe 1 and Jane Doe 2 having no motive to testify falsely were tied to evidence in the case and defense suggestions of reasons for fabricating the allegations: The prosecutor argued the absence of motive for Jane Doe 1 was shown by the fact that she did not come forward with the allegations but rather was "outed" by the school telling her father about her cutting; that Jane Doe 2 had no motive because defendant was already out of her life and that she was too young and innocent to make up her story when she learned defendant had not yet been arrested; that Cecilia did not even believe the allegations at first, then made sure defendant was out of her life and had no vendetta to pursue. Unlike Castaneda-Prada and Jackson v. Park, in which the existence of the excluded evidence on its face refuted the prosecutor's remarks, here the U Visa evidence could "refute" the prosecutor's argument only if it supported the inferences defendant draws from it. As we have explained, in the circumstances here, it did not: In light of the evidence that Cecilia was cooperating with the prosecution many months before the application and the absence of any significant change or addition of incriminating detail to the girls' initial descriptions of the abuse, the U Visa evidence would have been unlikely to alter the jury's evaluation of Cecilia's credibility and even less likely to alter its evaluation of the girls' credibility, which is what the case turned on.
DISPOSITION
The judgment is affirmed.
We concur. RICHMAN, J., MAYFIELD, J. [*]
[*] Judge of the Mendocino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.